Facebook Messenger for FMLA Leave Requests? Maybe. | McAfee and Taft
Gestamp West Virginia, LLC manufactures auto parts in South Charleston, West Virginia. Under Gestamp’s attendance and leave policies, employees must notify their group leader at least 30 minutes before the start of their shift if they will be late or absent. Employees are required to use a hotline to provide this notice. The hotline number is displayed on a bulletin board and Gestamp gives each employee a card bearing the hotline number.
Surgery, infection and work absences
Kasey Roberts worked on the assembly line at Gestamp and Gary Slater was his group leader. After undergoing an emergency appendectomy in June, Roberts sent Slater a Facebook message explaining his situation. Slater and Roberts continued to communicate via Facebook Messenger after the surgery, with Roberts telling Slater that he would be off work for two weeks while he recovers. After his release from the hospital, Roberts filed a doctor’s note with the company confirming the need to take time off work to recover.
Shortly before returning to work, Roberts’ surgical wound became infected and he was readmitted to the hospital. Roberts immediately texted Slater to explain that he was back at the hospital and he asked for the Human Resources fax number to forward the paperwork extending his sick leave. Roberts and Slater continued to communicate via Facebook Messenger about his condition and when he could return to work. Eventually, Roberts was cleared to return to work on August 12.
After working for a few days, Roberts began to experience pain and sought medical attention. On August 20, he messaged Slater saying he would be off work again, that he was admitted to the hospital, and that he didn’t know how long he would be hospitalized. On September 3, when Roberts returned to Gestamp with a doctor’s note covering his last absence, he learned that he had been fired for “abandonment of work”.
The FMLA Trial
Roberts sued Gestamp for her dismissal, claiming the employer breached her rights under the Family and Medical Leave Act. Under the FMLA, Gestamp had the right to require employees to comply with its “usual and customary notices and procedural requirements for requesting leave” unless “unusual circumstances” existed. Gestamp argued that Robert’s failure to use the employer’s call number to report his absences and status justified the dismissal. Roberts countered that Gestamp changed its calling requirements because of Roberts and Slater’s past use of Facebook Messenger for his absences.
Reviews via Facebook Messenger can work
FMLA regulations allow an employer to require its workforce to call a designated number or a specific person to request time off. The question here was whether Roberts’ use of Facebook Messenger to notify Slater of his absence and status was a “customary and customary” method of informing Gestamp of his need for FMLA leave. For a number of reasons, a federal appeals court ruled that a jury must decide whether Gestamp violated the FMLA by firing Roberts.
A “usual and customary” procedure includes “any method which an employer has, by informal practice or way of dealing with the employee, regularly accepted…”. Here, Roberts and Slater used to communicate about work issues using Facebook Messenger. Most notably, Roberts and Slater had regularly communicated about his health, absences, and return to work by messaging, and neither Slater nor anyone else at Gestamp had objected to this method in the past. Indeed, Roberts’ prior absences had been approved for FMLA leave.
Message to employers
Have a written policy setting out the procedure employees must follow when requesting time off or reporting absences. It makes sense to train supervisors on how these reporting requirements work and to emphasize that they should not approve an absence that does not meet your procedure. If unsure or have questions, supervisors should know to work with Human Resources when faced with leave or absence issues.
Roberts vs. Gestamp West Virginia, LLC.No. 20-2202 (4th Cir. 08/15/22)